Hill v. Ga. State Bldg. & Loan Ass'n

• Decision Date: 10 June 1904
• Citation: 120 Ga. 472,47 S.E. 897
• Parties: HILL . v. GEORGIA STATE BUILDING & LOAN ASS'N.
• Court: Georgia Supreme Court

47 S.E. 897

120 Ga. 472

HILL .

v.GEORGIA STATE BUILDING & LOAN ASS'N.

Supreme Court of Georgia.

June 10, 1904.

TAXATION — COLLECTION — TRANSFER OF EXECUTION—APPEAL—CROSS-BILL OF EXCEPTIONS.

1. An execution issued by a tax collector for state and county taxes cannot be lawfully transferred by the tax collector in a county having a population of less than 75, 000.

¶ 1. See Taxation, vol. 45. Cent. Dig. § 1168.

2. When a cross-bill of exceptions presents a question which is controlling upon the case as a whole, the Supreme Court will first consider and dispose of that question; and, if the judgment of the trial court with respect thereto is reversed, the main bill of exceptions will be dismissed.

(Syllabus by the Court.)

Error from Superior Court, Floyd County; W. M. Henry, Judge.

Action by the Georgia State Building & Loan Association against H. D. Hill. Judgment for plaintiff. Defendant brings error. Judgment on cross-bill of exceptions reversed. Writ of error on main bill of exceptions dismissed.

Denny & Harris, for plaintiff in error.

Seaborn & Barry Wright, for defendant in error.

COBB, J. Prior to 1872 there was no law authorizing any officer to transfer a tax execution. Smith v. Mason, 48 Ga. 177; State v. Wingfield, 59 Ga. 202. In that year an act was passed which authorized "the officer whose duty it is to enforce" such an execution to transfer it to the party paying the same, and giving such transferee all the rights as to enforcing the execution and priority of payment as might have been exercised before the transfer. This act, with its various amendments, is now embraced in Pol. Code 1895, § 888. Upon what oflicer is imposed the duty of enforcing a tax execution? Is it upon the officer who issues the execution, or upon the oflicer who levies it? Executions are enforced by levy, and it would seem that the officer upon whom the duty devolved of enforcing an execution would be the officer who is authorized and required to levy the same. As a general rule, the tax collector has no authority to levy a tax execution. The exception is in counties which contain a population of 75, 000 or more. Pol. Code 1895, § 958. Therefore, except in those counties, the authority to transfer a tax execution rests, not with the tax collector, but with the sheriff or other officer who may be authorized by law to levy the same. In 1879, in the case of Johnson v. Christie, 64 Ga. 117, it was held by two justices that the Comptroller General had no authority to transfer a tax execution issued by him against wild land. In 1890, in Scott v. Stewart, 84 Ga. 772, 11 S. E. 897, the decision in John son v. Christie was declared to be unsound by two of the justices, but was nevertheless followed in a decision concurred in by the three justices, upon the ground that the decision had been made nearly 11 years before; the bench, the bar, and the people had acted upon it during all that time; property rights had been acquired; and it was not deemed wise to overrule the decision, and bring about the confusion and litigation incident to a change in the decision. The later decision was followed in Horn v. Johnson, 87 Ga. 448, 13 S. E. 633. These decisions are controlling in principle where the right of the tax collector to transfer a tax execution is involved. We have not been able to find any direct ruling by this court to the effect that a tax collector cannot transfer a tax execution, but this seems to have been tacitly recognized as the law since the ruling was made that the Comptroller General did not have this authority. See, in this connection, Freeman v. Holcombe, 67 Ga. 337; Fuller v. Dowdell, 85 Ga. 463, 11 S. E. 773; Wilson v. Herrington, 86 Ga. 777, 13 S. E. 129; Blalock v. Buchanan, 114 Ga. 564, 40 S. E. 717. The prevailing opinion among the bar and the people since the decision in Johnson v. Christie, which was rendered nearly 25 years ago, has been that no officer is authorized to transfer a tax execution except the officer who is clothed with the power to levy it. And even if the reasoning at the beginning of this opinion may not be to...